2 April 2013

“Incapacitated” does not necessarily equal lack of testamentary capacity

The Dallas Court of Appeals’ decision in Estate of Pilkilton highlights key points for those of us who handle will contests in Texas.  The case originated in Grayson County, where one judge found that the testator was “totally incapacitated” in the context of a guardianship dispute.  While, after death, another judge held that, during the same general time period, the testator had testamentary capacity to execute a new will. The will contestants contended that, under the principal of collateral estoppel, the second judge was prevented from finding that the testator had capacity to execute the will. The Court of Appeals rejected that […]
17 April 2010

Advanced Guardianship Seminar

I attended the Texas Bar’s annual Advanced Guardianship Seminar in Dallas yesterday, April 16. Hot topics included the conflicts between Texas guardianship law and federal medicaid eligibility requirements, along with case law and legislative updates. A guardianship can become necessary in Texas for a person who becomes physically or mentally incapacitated.  It is very restrictive in that the guardian needs court approval before taking many actions on behalf of the ward. A power of attorney is a more flexible and less costly alternative in some circumstances.  However, powers of attorney also provide opportunity for the unscrupulous – often including a […]